“I absolutely think First Amendment law has shifted from protecting dissenters and socially marginal speakers to protecting powerful and wealthy speakers”: A discussion with law professor Gregory P. Magarian about the First Amendment and the recent events at Indiana University
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This past week I became intrigued and not a little bit concerned about a news story involving a faculty member at Indiana University, where I did my graduate work. It seems that a tenured professor of the business school named Eric Rasmusen is a degenerate of the worst sort, one who regularly tweets racist, homophobic and sexist bromides on his personal twitter account, and is apparently well-known to be one of the most toxic individuals in academia. The university responded to this revelation by castigating Rasmusen in the most florid language imaginable – almost with relish – while also making clear in no uncertain terms that IU could not fire Rasmusen because of First Amendment protections.
I’ll be totally honest: I’m not a litigator by trade and was at first given to wonder why the Rasmusen controversy was a First Amendment issue at all, rather than one of principle and/or student safety. That’s when I decided to interview Greg Magarian, the Thomas and Karole Greene Professor of Law at Washington University School of Law in St. Louis. His 2017 book Managed Speech: The Roberts Court’s First Amendment, is an exemplar of his stature as one of the greatest living scholars on the topic. He also has a true aesthete’s taste in music. Read below to hear Magarian’s views on the IU controversy, the Citizens United decision and the past, current and maybe future of First Amendment law.
EN: I’m curious from a layperson’s perspective to better understand the specific contours of the controversy between Indiana University and Professor Rasmusen. Both the university Provost and the dean of the business school have issued excoriating rebukes in the past couple days to Rasmusen’s views, while also emphasizing that First Amendment protections prevent them from taking further action against his employment at the university. Can you explain the protections that Rasmusen enjoys under the law, and would those apply to non-state institutions?
GM: The Bill of Rights binds state actors and not private actors. Public universities have First Amendment obligations; private universities generally don’t. Under the First Amendment, public employees have the right to speak as citizens about matters of public concern, subject to some balancing of whatever reason the government employer may have for wanting to suppress their speech. Indiana University stated, and I think they’re correct, that firing Rasmusen for his private speech would violate his First Amendment rights. If he directed bigoted attacks at students in the course of his job duties, his First Amendment case would be much weaker. If this were a private university, he wouldn’t have a First Amendment argument at all (although he might have a legal case under labor statutes or under the hypothetical private university’s internal policies).
EN: With respect to IU’s handling of the circumstances, do you think they have dealt with the situation appropriately? Do you perceive further remedies in the long and short-term that might be available to the institution, short of Professor Rasmusen’s public sanctioning? How would you anticipate a contentious situation such as this playing out over the long-term?
GM: I think the university has dealt with the situation as well as any public institution could. University leaders acknowledged that the First Amendment protects Rasmusen’s speech. The University then used its own speech to condemn his racism, misogyny, and homophobia in withering terms. The Provost’s statement pulled no punches. Civil libertarians tend to argue that the best response to bad speech is good counter-speech. That argument often pays insufficient attention to the real world challenges of effectively countering bad speech, but the counter-speech remedy can work very well in a case like this, when the counter-speaker matches or exceeds the social power of the bad speaker. Predictably Rasmusen is whining about his victimization, because conservatives only care about their own free speech, not anyone else’s and certainly not that of their critics. Beyond counter-speech, the university is taking concrete measures to protect students from Rasmusen. His courses will no longer be mandatory for anyone, and his grading will be regulated and monitored to protect against bias. Those steps are crucial, because Rasmusen is basically on record as believing that only straight white men are fully human. Nobody, including straight white men of conscience, should be forced to trust his discretion.
I think some students may argue that the university’s measures don’t go far enough to protect them, that they shouldn’t have to work their studies around a professor’s bigotry, that a faculty member’s irrational bias against a large part of the student population should disqualify him from holding the scarce resource of a faculty position and from exercising any power over students’ professional training. I’m very sympathetic to those arguments, but I think the university’s measures probably will protect students’ interests. If subsequent evidence shows that Rasmusen’s continued presence is undermining students’ ability to get the education they enrolled for, then the university can revisit his status, and its initial restraint will give it ethical and legal credibility to do so.
EN: In a broader sense, I was wondering if you could explain the evolving ways in which the First Amendment has been interpreted over the past several decades? At the risk of oversimplifying, is it fair to stipulate that the Supreme Court’s interpretations of the amendment have in some ways migrated from protecting the speech of the most vulnerable in our society to the most privileged? Is there a reason beyond the specific legal disposition of those serving on the court as to why this might be the case? It seems to mirror a broader trendline in our society wherein the mechanics of government are employed to undergird the influence of entrenched power.
GM: You’re singing my favorite tune! Yes, I absolutely think First Amendment law has shifted from protecting dissenters and socially marginal speakers to protecting powerful and wealthy speakers. We’ve now had exactly 100 years of First Amendment law: The Supreme Court didn’t decide a First Amendment case until 1919. For the first half of that century, the Court focused the development of First Amendment law on protecting the most socially vulnerable speakers and speakers who threatened established power and order – notably communists, Jehovah’s Witnesses, and civil rights activists. The law protected those speakers’ liberty and, just as crucially, the public’s interest in access to a wide range of viewpoints.
Then Nixon became president in 1969, and First Amendment law – like so many other things – started to go to hell. The Court increasingly tightened the screws on dissenters and vulnerable speakers, and then it started to develop protections for powerful speakers and their dominant viewpoints. Today, under the Roberts Court, wealthy, powerful, and/or ideologically conservative speakers win almost all the important First Amendment victories. If you’re a commercial data miner, a big-money electoral spender, or an anti-abortion zealot, then the First Amendment odds are ever in your favor; not so much if you’re a consumer, a minor-party political candidate, or a Black Lives Matter activist.
Courts get to interpret the Constitution; they get to change the law. But We the People get to govern ourselves, which means we get to push back against constitutional doctrines that betray our values and aspirations. The Court, in my view, has badly distorted what First Amendment law is supposed to be about. We have the collective power and responsibility to reject that distortion and to agitate for restoring and refining the First Amendment’s democratic promise.
EN: Citizens United is arguably the most important First Amendment case settled in recent memory, with sweeping ramifications for the future of our politics. I’m curious to know what you made of that decision and if you thought the extension of free speech protections to corporations was, at a minimum, sufficiently explained?
GM: The big deal in Citizens United actually wasn’t the idea that corporations have constitutional rights. That idea goes back to the late 19th century. Sometimes institutions, including corporations, should have constitutional rights like individuals have. If a corporation issues a statement critical of the government, should the government be able to punish the corporation? I don’t think so; I think the corporation in that instance is behaving just like an individual might behave, contributing to public debate, and the First Amendment should protect the corporation’s speech.
The important issues, I think, are which institutions should have which rights in which circumstances, and why. For example, the Hobby Lobby holding that a corporation can exercise religion strikes me as facially absurd. A corporation doesn’t have a conscience, which is the basis for individuals’ exercise of religion. On the other hand, a church doesn’t have an individual conscience either, but the church exists to facilitate its members’ exercise of religion. Thus, a corporation shouldn’t have religious rights, but a church should. Different institutions, different rights, different reasons.
In Citizens United, the important questions are (1) whether corporations should have a First Amendment right to spend money in campaigns and, (2) if so, to what extent the government has constitutionally viable grounds for limiting that right. I think the correct answer to both questions is a qualified yes. I believe a corporation like Citizens United itself – an ideological nonprofit that exists to create political messages – should have the First Amendment right to spend money to get its messages out. But I also believe the government should have great latitude to regulate wealthy business corporations’ efforts to stack political debates in the corporations’ favor. That’s the massively important thing that Citizens United got wrong. Again – different institutions, different rights, different reasons.
EN: Can you describe the phenomenon of “First Amendment absolutism” as espoused by the legendary litigator Floyd Abrams, and how that has recently impacted judicial dialog? How do you respond to the popular notion in conservative circles that the contemporary left does not care enough about open expression? Are college campuses systematically destroying free speech?
GM: Floyd Abrams is a deeply honorable, very smart man who has done more good in this world than I ever will. I also think he’s wrong about some important things. I don’t think “First Amendment absolutism” is a coherent concept. First, nobody actually believes in an unlimited right to speak – think blackmail, espionage, perjury – and second, different people’s speech rights often conflict: Think money in politics. When people talk about “free speech absolutism,” what they really mean is free speech formalism: If you can state a First Amendment claim against the government, you should win. That’s generally Floyd Abrams’ view.
I reject First Amendment formalism. I care instead about a substantive view of the First Amendment. The law should foster and promote social conditions that enable people to speak, to receive information, and to consider and debate ideas, in order to learn, to contribute to democracy, and to grow and thrive as human beings. We should presumptively mistrust government interference with speech, because the government has a lot of power and an intense self-interest. But sometimes the government can help make speech more free, especially when other powerful institutions, like wealthy business corporations, are trying to suppress speech. That’s why, for example, the First Amendment shouldn’t bar the government from making ISPs operate under Net Neutrality.
I think conservatives’ pious complaints about their victimization at the hands of the PC thought police are complete and abject bullshit. Conservatives almost never suffer coerced speech suppression; rather, conservatives always have been, are today, and probably always will be the dominant speech suppressors. Here’s a simple test for judging any claim of speech suppression: Who has power, and how is power being used to suppress speech? When conservatives claim that they’re afraid to speak on campuses because of a climate of PC repression, where’s the exercise of power? There isn’t any. They’re just afraid to speak because they don’t believe they should have to bear and answer criticism. They want to proclaim “build that wall!” while the rest of us just meekly cast our eyes downward as the wall gets built. When we instead respond “building that wall is racist and inhumane, which makes you a racist, inhumane asshole,” they whine that they’re being coerced into silence.
You want to know what forms coerced speech suppression on university campuses really takes? Conservative-authored laws that force public universities to hire more conservatives and teach more conservative viewpoints or else lose state funding. Conservative-backed penalties for students who vocally oppose Israel’s brutality against Palestinians. Pressure from conservative alumni and conservative donors for administrators to bring more right-wing and fewer left-wing speakers and groups to campus. That’s how power suppresses speech.
Some people on the left, generally young people of color and young sexual identity minorities, do increasingly reject liberal norms of free speech. Those of us who care about free speech should, in keeping with our own liberal values, hear what those critics have to say. I think they make a lot of painfully sound points. They see the failings of present free speech law, and they see themselves getting the bad end of the free speech bargain. Too many free speech advocates essentially tell those critics to shut up and get with the program. Instead, we should engage with the critics to find, together, pathways to a free speech ethos that promotes every speaker’s, audience’s, and community’s part in a robust public discourse.